FILED
NOT FOR PUBLICATION AUG 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30040
Plaintiff - Appellee, D.C. No. 1:07-CR-00001-TMB
v.
MEMORANDUM *
ROCK SHOGHI BALDWIN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Argued and Submitted July 28, 2010
Anchorage, Alaska
Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.
Rock Shoghi Baldwin appeals from the 151-month sentence imposed
following his guilty-plea conviction for distribution of child pornography and
possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2),
(a)(4)(B), (b)(1), and (b)(2). The facts are known to the parties and need not be
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
repeated here.
Baldwin contends that the district court erred in refusing to grant any relief
for the Government’s refusal to file a substantial assistance departure motion
pursuant to U.S.S.G. § 5K1.1. To warrant any relief, Baldwin was required to
“make a substantial threshold showing that the Government’s refusal to file a
§ 5K1.1 motion was unconstitutional, arbitrary, or breached [a] plea agreement.”
United States v. Flores, 559 F.3d 1016, 1020 (9th Cir. 2009). However, Baldwin
failed to make any showing below beyond his claim that he “provided substantial
assistance” and “generalized allegations of improper motive.” Wade v. United
States, 504 U.S. 179, 186 (1992). Furthermore, the district court did not err in
concluding that there was no agreement to file a § 5K1.1 motion.1 Because his
“claim as presented to the District Court failed to rise to the level warranting
judicial enquiry,” Baldwin is entitled to no relief. Id. at 187.
AFFIRMED.
1
Although the parties dispute whether the standard of review should be clear
or plain error, we reach the same conclusion under either standard.
2